Wednesday, 10 October 2012

Free speech again

I have always enjoyed reading Private Eye, and often laugh out loud at the cover picture and caption. Over the years, some of the covers have strayed very much into bad taste, and I suppose my enjoyment therefore counts as something of a guilty pleasure.

For example, at the time of the Thalidomide scandal, a company executive was shown on the cover exclaiming "they haven't got a leg to stand on".

Almost matching that for offence was the picture of a stressed-looking Michael Barrymore when Stuart Lubbock had been found dead following a party at Barrymore's house. Press reports stated that Lubbock had received a serious sexual assault before his death. The caption had someone asking how he died, with Barrymore (who is homosexual) responding "Buggered if I know".

Then there was a picture of Lord Hutton after his well-known report on Dr David Kelly's death, which largely exculpated the government. The caption read "... and in conclusion, I find Dr Shipman innocent of all charges."

The Eye is no stranger to the courts, though so far as I am aware it has only experienced the libel courts at the RCJ on the Strand rather than the criminal courts at the Old Bailey up the road.

Of course I accept that some people would be grossly offended by the three covers. But I do not accept that the Eye should have been prosecuted for any of them. And yet the possibility of any similar items landing the Eye in the dock must now be raised, given a recent and very disturbing assault on free speech in this country.

As set out by the UK Human Rights blog, one Matthew Woods, a 20-year-old, has been sent to prison for twelve weeks for posting offensive and derogatory comments about missing five-year-old April Jones on his Facebook page. He pleaded guilty to an offence under s.127 of the Communications Act 2003, which prohibits a person sending ”by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character“.

This is the same Act that was responsible for the infamous Paul Chambers twitter trial, which I wrote about recently. In the case of Chambers, what he wrote was patently not of an indecent, obscene or menacing character, so the CPS should never have gone near him. In the case of Woods, by contrast, what he wrote was certainly indecent and obscene, so it can be said that there was a prima facie case. But there are at least five problems.

First, the sentence is wholly disproportionate given the number of crimes involving actual violence or burglary or other things distinctly worse than offensive words on the internet which do not result in any custodial sentence. The press readily supply examples of assaults or burglaries which end up with a slap on the wrist by way of a conditional discharge or something else well short of prison.

Second, and more fundamentally, criminalising offence is contrary to the basic idea of freedom of speech, which is that not only “good” speech is permitted. As I have said in my forthcoming book,

With regard to freedom of speech, I have long endorsed the analogy advanced by Judge Richard Posner with America’s cold war strategy. America’s front line against the USSR, he observed, was not the Potomac but the Elbe. It was hoped that any conflict would be safely away from American soil, meaning ground could be ceded here and there without threatening their core interests.Similarly, advocates of free speech argue for a wider protection than that strictly necessary to preserve values such as open and free political discussion, artistic freedom and personal fulfilment. They spend their time defending often offensive, sadistic, sordid or nonsensical manifestations of speech. By doing so they calculate that speech that is merely offensive, or indeed simply not finding favour with the political agenda of the government of the day, is never threatened.

Third, there is a simple remedy for those who are offended by rubbish on the internet or elsewhere. I can’t say I find the humour of Russell Brand or Frankie Boyle particularly funny - both of whom try and generate laughs by being as offensive as possible - so for the most part I don’t bother watching or reading them. That is the simplest remedy. If anyone annoyed me on Facebook or Twitter I would defriend them or stop following them. (Indeed, as it happens, I have stopped allowing comments on this blog because of a tiresome number of either pointless comments or spam kept appearing.)

Fourthly, we have to define what is offensive in the first place, which might not be so obvious. I imagine we might all agree that Mr Woods' efforts fell into that category. But a highly intelligent blogger of my acquaintance recently wrote a wholly innocuous piece about the innocence of childhood, in a light-hearted and humourous vein, and had two people take a ludicrous amount of offence to it, having wholly misread the tone of the post. I would not like them on the jury if I were ever prosecuted for some internet publishing offence that carried the right to jury.

Fifthly, and finally, any attempts to ban offensive material on Twitter and Facebook or the internet generally are pretty much doomed to fail, because there are many millions of posts every day. The CPS cannot possibly consider every one of them and, besides, any number are generated overseas and thus beyond the jurisdiction anyway.

The date of the Communications Act gives a clue about why it is turning into such a problem. 2003 was another age, or, frankly, another epoch in the history of electronic communications. It predates both Facebook and Twitter. For those aged 20 or less, I imagine that seems like the 19th Century does to my (only slightly older) generation. I wonder if those drafting the Act really had any idea of the likely effect of what they were doing. Either way, Parliament needs to look at it again, and quickly.

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This is the blog of James Wilson. I am a freelance legal knowledge manager, author, editor, publisher and PR adviser. It contains details on the books and articles I have written as well as a general blog which I update from time to time as commitments allow.

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